This matter is before the Authority on exceptions to an award
of Arbitrator Joseph Lazar filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations. The Union filed an opposition to the
Agency's exceptions.(*)

In an "interim award," the Arbitrator ruled that he was properly
selected as a national arbitrator. Award at 1, 9. The Arbitrator stated that
unless the parties disqualified him pursuant to the provisions of their
collective bargaining agreement, "a hearing date for the New Orleans case, on
its substantive merits, will be scheduled." Id. at 8-9.

For the following reasons, we will dismiss the Agency's exceptions to
the Arbitrator's interim award as interlocutory.

II. Background and Arbitrator's Award

Section 44.02 of the parties' national collective bargaining agreement
provides for the selection of three permanent national arbitrators to resolve
grievances arising under the negotiated grievance procedure. Article 8 of
the national agreement provides procedures for resolving negotiation disputes,
including a provision for selecting three permanent mediator/arbitrators to
decide negotiation disputes. In June 1991, the parties began the process of
selecting national arbitrators and mediator/arbitrators and requested two lists
of potential arbitrators from the Federal Mediation and Conciliation Service
(FMCS). However, after the lists were received, the parties disagreed as to how
to proceed. In a meeting on April 28, 1992, the Agency refused to
participate with the Union in the striking of names from the list to determine
the three national arbitrators who would hear and resolve grievances under
section 44.02 of the agreement. The Agency contended that the Union must first
participate in the selection of mediator/arbitrators under Article 8 of
the agreement.

The Union then unilaterally struck names from the list of arbitrators
provided by FMCS under Article 44 of the agreement and chose three
arbitrators, including the Arbitrator involved in the instant case, as national
arbitrators. In a letter dated May 27, 1992, to the Arbitrator, the Union
stated that: (1) in late April 1992, the Agency had refused to participate
with the Union in the joint selection of national arbitrators; (2) the Union
had unilaterally selected the Arbitrator as one of the three national
arbitrators in accordance with Article 44 of the parties' agreement; and
(3) two cases were awaiting arbitration and the Union requested
availability dates to hear the cases.

By letter of July 22, 1992, the Arbitrator notified the Agency and the
Union that on July 30, 1992, he would hold a "preliminary hearing on threshhold
[sic] question of interpretation and application of section 44.03 of collective
bargaining agreement: selection of the national arbitrators." Exceptions,
Exhibit 14. The Agency advised the Arbitrator that it would not attend the
hearing on the ground that, among other things, the Arbitrator was not selected
pursuant to the parties' agreement. The Union appeared at the hearing. On
August 6, 1992, the Arbitrator issued the interim award which is now before
us.

In his interim award, the Arbitrator referred to Article 44 of the
parties' agreement and found that "the Agency refused to strike [a]rbitrators
at all [which] was a plain, clear, unequivocal denial of the mandatory
requirement that the [p]arties shall strike [arbitrators from the FMCS list]."
Award at 5 (emphasis omitted). The Arbitrator ruled that the Agency was
not entitled to insist that if there were no selection of mediator/arbitrators
under Article 8 of the agreement, there would be no selection of national
arbitrators under Article 44. The Arbitrator held that "when the Agency
insisted on a condition not present in . . . Section 44.03, and gave
up its right to strike [arbitrators from the FMCS list], it was estopped from
objecting to the Union's unilateral striking [of arbitrators from the FMCS
list]." Id.

The Arbitrator held that "he possesses the authority and jurisdiction
of a [n]ational [a]rbitrator under the provisions of the [c]ollective
[b]argaining [a]greement." Id. The Arbitrator also observed that the
parties "have further safeguards built into their [a]greement," particularly
Article 44, which provides a method by which either party may object to a
national arbitrator and request that such an arbitrator be disqualified.
Id. at 8. He stated that "[i]n this event, disqualification by the
present arbitrators [sic] may be expected. Otherwise, a hearing date for the
New Orleans case, on its substantive merits, will be scheduled." Id. at
8-9. He made the following award:

INTERIM AWARD

The National Arbitrator was properly selected under the Collective
Bargaining Agreement and has authority and jurisdiction of National
Arbitrator.

The Opinion section of this Interim Award is incorporated
herein.

Id. at 9.

III. The Agency's Exceptions Are Timely

As an initial matter, we note that in its opposition to the Agency's
exceptions, the Union asserts that the exceptions are untimely. Under section
2425.1(b) of the Authority's Rules and Regulations, the time limit for filing
exceptions to an arbitration award is 30 days beginning on the date the award
is served on the filing party. 5 C.F.R. &§ 2425.1(b). Absent evidence
to the contrary, the date of an arbitration award is presumed to be the date of
service. SeeU.S. Department of the Navy, Naval Aviation Depot,
Norfolk, Virginia and International Association of Machinists and Aerospace
Workers, Local 39, 42 FLRA 322, 326 (1991). If the award is served by mail,
5 days are added to the period for filing exceptions to the award. 5 C.F.R.
&§ 2429.22.

In this case, the Arbitrator's award was dated August 6, 1992, and
was served on the parties by mail. Therefore, any exception to the award had to
be filed with the Authority no later than September 9, 1992, to be considered
timely. 5 C.F.R. &§&§ 2425.1(b), 2429.21 and 2429.22. As
the Agency's exceptions were filed (postmarked) on September 9, 1992, they
are timely. SeeAmerican Federation of Government Employees, Local
2142 and U.S. Department of the Army, Corpus Christi Army Depot, Corpus
Christi, Texas, 46 FLRA 61, 63-64 (1992).

IV. The Agency's Exceptions Are Interlocutory

Following receipt of the Agency's exceptions, we issued an order
directing the Agency to show cause why its exceptions should not be dismissed
as interlocutory. The order stated, among other things:

In this case, it appears that the Arbitrator has not yet rendered a
final award on the entire dispute submitted for arbitration. The record shows
that the Arbitrator made a determination only on the propriety of his
selection, authority, and jurisdiction as a National Arbitrator under the
parties' negotiated agreement. The Arbitrator's award specifically states that
"a hearing date for the New Orleans case, on its substantive merits, will be
scheduled."

Order to Show Cause at 1 (quoting Award at 8-9). The order further
stated that, to comply with the order, the Agency "must show that the parties
did not submit the entire matter of 'the New Orleans case, on its substantive
merits[,]' to the [A]rbitrator for resolution. In the alternative, the Agency
must show that extraordinary circumstances exist for the Authority to consider
the Agency's interlocutory exceptions." Id. at 2.

A. Positions of the Parties

1. The Agency

The Agency asserts that its exceptions are not interlocutory and that
the New Orleans case was not submitted to the Arbitrator. The Agency contends
that the parties did not submit the substantive merits of the case in the New
Orleans District Office or any other case to the Arbitrator and asserts that
the Agency was not a party to any matter before the Arbitrator. The Agency
maintains that the Arbitrator's award "was not interim to any specific
grievance." Agency's Response to Order to Show Cause at 3. The Agency
contends that the issue decided by the Arbitrator concerned only his authority
as a national arbitrator and asserts that this issue has been "fully
litigated." Id.

In its supplemental submission, the Agency asserts that the
Arbitrator's letter of January 27, 1993, demonstrates that the Arbitrator's
award "was not limited to the 'New Orleans grievance,' and therefore
interlocutory, as contended by the Union and as suggested by the Authority's
Order to Show Cause." Supplemental Submission at 4. According to the Agency,
the letter shows that the Arbitrator "has stated a willingness to hear a number
of grievances [and] [t]hus, it has become even more compelling that his 'award'
was not interlocutory, but rather final as to his conclusion that he had
proclaimed himself to be the National Arbitrator for all purposes." Id.

The Agency also notes that the New Orleans case referred to by the
Arbitrator concerns a removal for unsatisfactory performance under
5 U.S.C. &§ 4303 and maintains that the award would not be
subject to the filing of exceptions with the Authority if the award were
treated as interlocutory and the Agency's exceptions were not considered at
this time.

The Agency further contends that, if the Authority finds that the
exceptions are interlocutory, extraordinary circumstances within the meaning of
the Authority's Rules and Regulations exist warranting consideration of the
exceptions. The Agency asserts that if the Arbitrator is allowed to continue to
adjudicate issues brought before him by the Union, "the result will be an
extraordinary increase in expense to the Government and a serious disruption of
the functioning of the Agency." Id. at 5. The Agency maintains that
it will not participate in further arbitrations before the Arbitrator and that
any exparte awards rendered by the Arbitrator will be excepted
to by the Agency and will create additional litigation burdens on the
parties.

2. The Union

The Union contends that the Agency's exceptions are interlocutory and
maintains that the Arbitrator's award resolved only the threshold issue of
arbitrability. The Union asserts that the Arbitrator "clearly referred to his
award as an 'Interim Award' and further indicated that the Agency should
reconsider its refusal to arbitrate" or he would schedule a hearing on the
merits of the New Orleans case. Opposition to Agency's Response to Order to
Show Cause at 2. The Union maintains that "by its very terms the
[A]rbitrator's award was not a complete determination of every issue but an
interlocutory award which contemplated further hearings on the substantive
issues in New Orleans." Id.

B. Analysis and Conclusions

Section 2429.11 of the Authority's Rules and Regulations provides: "The
Authority . . . ordinarily will not consider interlocutory appeals." In
arbitration cases, the Authority ordinarily will not resolve exceptions filed
to an arbitration award unless the arbitration award constitutes a complete
determination of all issues submitted to arbitration. SeeAmerican
Federation of Government Employees, National Council of EEOC Locals,
Local 216 and Equal Employment Opportunity Commission, 41 FLRA
70, 72 (1991).

We conclude that the Agency's exceptions to the Arbitrator's award in
this case are interlocutory and must be dismissed. The record establishes that
the Arbitrator determined his authority as a national arbitrator under Article
44 of the parties' collective bargaining agreement only as a threshold matter
preliminary to resolution of the grievance pending in the Agency's New Orleans
District Office. Based on the record before us, there is no indication that
there has been a complete determination of the issues in the grievance pending
in the Agency's New Orleans District Office. In this regard, after concluding
that he possessed "the authority and jurisdiction of a [n]ational [a]rbitrator
under the provisions of the [c]ollective [b]argaining [a]greement[,]" the
Arbitrator stated that "a hearing date for the New Orleans case, on its
substantive merits, will be scheduled." Id. at 8-9. We note also
that the Arbitrator designated his award as an "interim award." Id. at
1, 9.

We reject the Agency's contention that the Arbitrator's letter of
January 27, 1993, demonstrates that the Arbitrator's award "was not limited to
the 'New Orleans grievance,' and therefore interlocutory, as contended by the
Union and as suggested by the Authority's Order to Show Cause." Supplemental
Submission at 4. In the letter, the Arbitrator states, in pertinent part, that
"the Union's request for consolidation of grievances, and hearing dates, time
and location are acceptable." Id., Attachment. In our view, the letter
supports the conclusion that the award is interlocutory because it did not
completely resolve all issues that were submitted to arbitration.

We also reject the Agency's contention that the award is not
interlocutory because the New Orleans grievance concerns a performance-based
removal of an employee under 5 U.S.C. &§ 4303 and,
therefore, is not subject to the filing of exceptions with the Authority. A
determination as to whether an award is final or interlocutory depends on
whether there has been a complete determination of all issues submitted to
arbitration, not on whether exceptions to that award may properly be filed with
the Authority. Questions as to whether an award is subject to the filing of
exceptions with the Authority may be resolved after an award is final and a
party takes exceptions to the final award.

Consequently, we find that the award in this case was not final and the
Agency's exceptions are interlocutory. Moreover, we conclude that the Agency
has not shown that any circumstances exist which warrant a departure from our
practice of generally not resolving interlocutory appeals.

Accordingly, we conclude that the award constitutes an interim award
pending a final determination by the Arbitrator on the grievance in the New
Orleans District Office and that the Agency's exceptions are interlocutory. As
the Agency has not demonstrated that extraordinary circumstances exist
warranting consideration of its exceptions at this time, the exceptions are not
properly before us under section 7122(a) of the Statute. The Agency's
exceptions will be dismissed.

V. Order

The Agency's exceptions are dismissed without prejudice to the timely
filing of any exceptions with the Authority after a final award is rendered by
the Arbitrator.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

*/ On February 18, 1993, the
Agency requested permission to file a supplemental submission in which the
Agency requested that the Authority take action to prevent the Arbitrator from
holding a hearing on February 22 and 23, 1993. Pursuant to section 2429.26 of
our Rules and Regulations, we considered the Agency's submission and found that
it provided no basis on which the Authority should order the requested action.
Accordingly, no action was taken on the Agency's request.

In its request of February 18, 1993, the Agency also requested
leave to file a letter from the Arbitrator, dated January 27, 1993, after the
Agency filed exceptions in this case, as supplemental evidence in support of
its exceptions.

The letter concerned the scheduling of hearings on pending grievances.
Pursuant to section 2429.26 of our Rules and Regulations, the Agency's request
is granted. SeeU.S. Customs Service, 46 FLRA 1080 (1992)
(union permitted to file a supplemental submission addressing applicability of
a court decision that was issued after the union filed its exceptions in an
unfair labor practice case); U.S. Department of Transportation,
Federal Aviation Administration, Springfield, Illinois and National Air Traffic
Controllers Association, 39 FLRA 1036, 1040 (1991) (union permitted to
file a supplement in support of its exceptions to an arbitrator's award;
supplement enclosed a second arbitration decision by the same arbitrator on a
different grievance).